CN-Beijing-Dong Cheng District-1 East Chang An Avenue Lease - Beijing Oriental Plaza Co. Ltd. and Netease Information Technology (Beijing) Co. Ltd.
Dated the 31st day of Oct. 2002
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Beijing Oriental Plaza Co., Ltd.
[Chinese Company Name]
and
Netease Information Technology (Beijing) Co. Ltd.
[Chinese Company Name]
_________________________________________________
TENANCY AGREEMENT
in respect of
Units 1-6 on Level 19, Office Tower E3,
The Towers, Oriental Plaza,
No. 1 East Chang An Avenue,
Dong Cheng District, Beijing, 100738, China
_________________________________________________
<PAGE>
THIS TENANCY AGREEMENT made this day of Two Thousand and
BETWEEN the party named and described as the Landlord in Part 1 of the Schedule
hereto ("Landlord" which expression shall where the context admits include its
successors and assignees) of the one part and the party named and described as
Tenant in Part 1 of the Schedule hereto ("Tenant") of the other part.
WHEREBY IT IS AGREED as follows:
1. The Landlord shall let and the Tenant shall take All Those premises
("Premises") which form part of the building ("Building") set out in Part 2 of
the Schedule hereto of the development known as ORIENTAL PLAZA [Chinese Building
Name] ("Development") situate at No. l East Chang An Avenue, Dong Cheng
District, Beijing, the People's Republic of China Together with all those
fixtures fittings furniture or any other articles or things provided by the
Landlord as set out in the Appendix hereto (if any) ("Fixtures and Fittings")
for the term defined in Part 3 of the Schedule hereto ("Term") YIELDING AND
PAYING therefor throughout the Term the rent ("Rent") and management fees
("Management Fees") as are set out in Part 4 of the Schedule hereto and subject
to the terms and conditions hereinafter contained.
2. The Schedule hereto together with the Standard Conditions of the Tenancy
Agreement ("Standard Conditions") set out in Appendix One hereto as varied
and/or modified by the Special Conditions ("Special Conditions") specified in
Appendix Two hereto and other Appendices expressly annexed hereto shall form
part of this Tenancy Agreement and shall be incorporated into this Tenancy
Agreement.
SCHEDULE ABOVE REFERRED TO
This Schedule sets out the details and particulars of this Tenancy Agreement and
unless the context otherwise requires the terms specified in this Schedule shall
have the meanings therein ascribed to them.
Part 1 - the Parties
Landlord: Beijing Oriental Plaza Co., Ltd. [Chinese Company Name]
Address: No.l, East Chang An Avenue, Dong Cheng District, Beijing, the People's
Republic of China (P C. No.:100738)
Tenant: Netease Information Technology (Beijing) Co. Ltd.
[Chinese Company Name]
Address: [Chinese Address]
<PAGE>
Part 2 - the Premises
Premises: Units 1-6 on Level 19 of the Building (as shown for
identification purposes only coloured Red on the plan(s)
annexed hereto as Appendix Three)
Building: Office Tower E3 of the Towers at Oriental Plaza
Gross Floor Area.: Approx.1,592 square metres (the gross floor area is for
reference only and it includes the usable space of the
Premises and a pro-rata share of the enclosing structural
elements and the mechanical and electrical installation
areas and common facilities for the day-to-day operation of
the Building)
Part 3 - the Term
Term: 36 months (Inclusive of the Commencement Date and Expiry
Date)
Commencement Date: June 1, 2003
Expiry Date: May 31, 2006
Part 4 - the Rent and the Management Fees
Rent: United States Dollars USD 34,705.60 per calendar month and
payable in Renminbi according to the terms hereof
Management Fees: United States Dollars USD 5,572.00 per calendar month and
payable in Renminbi according to the terms hereof
Part 5 - the Deposit and Advance Pavement
Deposit: An amount in Renminbi 1,002,912.00 by way of cash security
Advance Payment: United States Dollars USD 40,277.60 and payable in Renminbi
for the Rent and the Management Fees from June 1, 2003 to
June 30, 2003
<PAGE>
Landlord: Beijing Oriental Plaza Co., Ltd. (company chop)
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Legal Representative: Kam Hin Lam
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_______________________________________(signature)
Office Address: Level 12, Tower W2, The Towers, Oriental Plaza,
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No.1 East Chang An Avenue, Dongcheng District, Beijing
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Telephone: 8518 6688
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Fax: 8518 6019
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Postal Code: 100738
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Tenant: Netease Information Technology (Beijing) Co. Ltd.
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[Chinese Company Name] (company chop)
-------------------------------
Legal Representative: [Chinese Company Name]
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/s/ Ted Sun (signature)
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Office Address: [Chinese Address]
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Telephone: ________________________________________________________
Fax: ________________________________________________________
Postal Code: ________________________________________________________
Appendices
1. Appendix One: Standard Conditions
2. Appendix Two: Special Conditions
3. Appendix Three: Coloured Floor Plan(s)
4. Appendix Four: Fixtures and Fittings
<PAGE>
APPENDIX ONE ABOVE REFERRED TO - STANDARD CONDITIONS
Clause 1- Rent and Management Fees etc.
The Tenant to the intent that obligations hereunder shall continue throughout
the Term hereby undertakes and agrees with the Landlord as follows:
1.1 (Rent and Management Fees) To pay the Rent and the Management Fees on the
first working day of each and every calendar month and in the manner provided in
the Schedule hereto in advance clear of all deduction, set-off or withholding by
way of cheques of immediate value drawn in favour of "Beijing Oriental Plaza
Co., Ltd." or "[Chinese Company Name]" or by remittance or bank transfer to the
bank account of the Landlord provided in this Tenancy Agreement or otherwise
designated by the Landlord in writing from time to time. The first and last
payments shall be made proportionately (if applicable) according to the number
of days included in the first and last months of the Term. The Management Fees
shall include without limitation all contributions towards the cost of the
Landlord and/or its property manager of the Building (the "Property Manager")
for and in providing central air-conditioning and heating, maintaining
environmental hygiene of the Building including garbage disposal (excluding
business or trade wastes of the Tenant), installing and maintaining common
facilities, providing water, electricity and communication services for use in
the common areas, public liability insurance, fire insurance and such other
insurance necessary against risks for managing the common areas of the Building,
remuneration and other benefits for security guards and other property
management personnel (including consultation fees payable to professionals where
necessary) and administration cost (including the remuneration of the Property
Manager) and any other building services provided by the Landlord and/or the
Property Manager. The Landlord shall be entitled to prepare or revise the budget
for the Management Fees periodically, provided that the percentage of any such
readjustment shall apply equally to all tenants in the Office Towers of Oriental
Plaza and any readjustment of the Management Fees, if any, shall be notified in
writing to the Tenant and shall take effect from the date specified in such
notice.
1.2 (Advance Payment) Upon signing this Tenancy Agreement, the Tenant shall pay
to the Landlord the sum set out in Part 5 of the Schedule hereto ("Advance
Payment") which is equivalent to the aggregate of (i) one (1) month's Rent and
Management Fees as advance payment thereof; and (ii) the prorated monthly Rent
and Management Fees according to the number of days included in the month of the
Term for which the Rent and the Management are first payable respectively under
this Tenancy Agreement.
1.3 (Occupation Taxes) To pay and discharge all taxes charges impositions and
other outgoings of an annual or recurring nature (Land Use Fee and Building
Property Tax excepted) now or hereafter to be imposed and charged by all lawful
authorities upon the Premises and responsible by the tenant or upon the tenant
or occupier thereof under the relevant laws and regulations and to produce to
the Landlord such receipts or other evidence of any of the payments aforesaid as
the Landlord may from time to time reasonably require.
<PAGE>
1.4 (Charges) To discharge all outgoings or charges for telephone services,
internet, telecommunication services, electricity and other services consumed in
the Premises and all necessary connection fees and deposits (if any) for such
services.
1.5 (Currency Conversion) The Tenant shall pay the Rent, the Management Fees
and all other amounts due and payable to the Landlord under this Tenancy
Agreement in Renminbi in accordance with the applicable laws and regulations of
the People's Republic of China. The conversion rate of the United States Dollar
to Renminbi applicable to any payment(s) demanded pursuant hereto for any month
shall be the USD/RMB basis exchange rate as published by the People's Bank of
China on the first working day of the previous month.
Clause 2 - Tenant's Obligations
The Tenant to the intent that obligations hereunder shall continue throughout
the Term hereby undertakes and agrees with the Landlord as follows:
2.1 (Compliance with regulations by-laws rules) To observe and comply with and
to indemnify the Landlord against the breach of any legislation law regulation
by-law rule and requirement of any government or other competent authorities
relating to the use and occupation of the Premises or to any other act deed or
thing done suffered or omitted therein or thereon by the Tenant or any employee
agent contractor invitee customer or visitor of the Tenant and without prejudice
to the foregoing to obtain such licence approval or permit required by any
government or other competent authorities in connection with the Tenant's use or
occupation of the Premises prior to the commencement of the Tenant's business
and to maintain the same in force and to notify the Landlord forthwith in
writing of any notice received from any government or public authority
concerning or in respect of the Premises or any services supplied thereto.
2.2 (Obligation to take possession of property etc.) To take possession of the
Premises upon the Commencement Date by following all steps and procedures
required by the Landlord, failing which possession shall be deemed to have been
taken and the Term shall be deemed to have commenced on the Commencement Date
without prejudice to other rights and remedies of the Landlord provided herein.
2.3 (Internal Fitting-out Works) To fit out the Premises at the Tenant's own
cost and expenses in accordance with such plans and specifications as shall have
been first approved in writing by the Landlord (such approval not to be
unreasonably withheld), in a good and proper workmanlike manner and in all
respects in a style and manner appropriate to a first class office building and
upon payment of the fitting-out deposit reserved in the Regulations and so to
maintain the same throughout the Term in good repair and condition. Delays in
any event in the submission or resubmission of fitting-out plans and
specifications shall not affect the commencement of the Term and the payment of
the Rent the Management Fees and other amounts payable by the Tenant in
accordance with the provisions hereof. The Tenant shall not cause suffer or
permit any variation to the approved fitting-out plans and specifications or to
the interior design or layout of the Premises without the prior approval in
writing of the Landlord (such approval not to be unreasonably withheld) and in
the event of such approval being requested it shall be a condition precedent to
the granting thereof that the Tenant shall pay to the
<PAGE>
Landlord all special deposit(s) reserved in the Regulations hereinafter
described. For the avoidance of doubt, it is hereby expressly agreed that:
(i) the Landlord approving the Tenant's fitting-out plans and specifications as
above shall not exonerate the Tenant from its obligation to seek at its own
costs the appropriate approval(s) from all relevant competent government
authorities in Beijing to the fitting-out plans and specifications that the
Landlord has approved before commencing the fitting-out works; and
(ii) the Landlord shall not be responsible for any consequence resulting from
the Tenant's non-compliance with any requirement stipulated and/or imposed
by the said relevant competent government authorities in Beijing.
2.4 (Repair obligations) To keep all the interior non-structural parts of the
Premises including flooring and interior plaster or other finishes or rendering
to walls floors and ceilings the Landlord's fixtures and fittings therein and
all additions thereto including but not limited to all doors windows electrical
installations wiring ducting and piping therein in good clean tenantable and
proper repair and condition and properly preserved and painted.
2.5 (Injury and damage to property, indemnity and insurance) To be wholly
responsible for and to indemnify the Landlord against all claims, demands,
suits, proceedings, judgments, damages, costs and expenses of any nature
whatsoever which the Landlord may suffer or incur in connection with any loss of
life, personal injury and/or loss or damage to property arising from or out of
any activity or occurrence in, upon or at the Premises or the use of the
Premises or any part thereof or through the defective or damaged condition of
any part of the interior of the Premises or any fixtures fittings wiring or
piping therein for the repair of which the Tenant is responsible hereunder or in
any way owing to the spread of fire or smoke or the overflow of water or the
escape of any substance or anything from the Premises or any part thereof or the
act default or neglect of the Tenant or the Tenant's employees agents
contractors licensees invitees customers or visitors. The Tenant shall effect
insurance cover in respect of the above risks with a reputable insurance company
to the satisfaction of the Landlord. The policy of such insurance shall be in
the name of the Tenant and endorsed to show the Landlord as the registered owner
of the Building and shall be in such amount as the Landlord may from time to
time stipulate and shall contain a clause to the effect that the insurance cover
thereby effected and the terms and conditions thereof shall not be cancelled
modified or restricted without the prior written consent of the Landlord and the
Tenant shall provide to the Landlord a copy of such policy and the receipt for
the current premium or a letter of confirmation from the Tenant's insurer
containing sufficient information to satisfy the Landlord as to the adequacy of
such insurance.
2.6 (Replacement of windows or curtain wall) To reimburse to the Landlord the
cost of replacing all broken and damaged windows and glass or curtain wall if
the same be broken or damaged by the act or neglect of the Tenant its employees
agents contractors invitees customers or visitors.
2.7 (Entry by Landlord) To permit the Landlord and all persons authorised by it
at all reasonable times upon notice to enter and view the state of repair of the
Premises to take
<PAGE>
inventories of the fixtures therein and to carry out any works repairs or
maintenance to the Premises and/or the Building provided that in the event of an
emergency the Landlord its employees or agents may enter without notice and
forcibly if need be and for this purpose, the Tenant shall inform the Landlord
as to the presence and nature of any security system of the Tenant installed in
the Premises.
2.8 (Notice of repair) On receipt of any notice from the Landlord or its
authorised representative specifying any repairs which are required to be done
and which are the responsibility of the Tenant hereunder forthwith to put in
hand and execute the same without delay. Failure by the Tenant so to do will
entitle the Landlord or its employees or agents to enter upon the Premises and
forcibly if need be to carry out any such works or repairs at the expense of the
Tenant.
2.9 (Inform Landlord of damage) To give notice in writing to the Landlord of
any injury to person occurred in and any damage that may be suffered to the
Premises and of any accident to or defects in the water pipes electrical wiring
or fittings fixtures or other facilities provided by the Landlord.
2.10 (Directory boards) To pay the Landlord immediately upon demand the cost of
affixing repairing altering or replacing as necessary the Tenant's name in
lettering to the directory boards provided by the Landlord.
2.11 (Viewing Advertising and Reletting) To permit at all reasonable times upon
prior notice during the three calendar months immediately preceding the
expiration of the Term prospective tenants or occupiers to inspect the Premises
and every part thereof.
2.12 (Regulations) To observe and perform and not to contravene any of the
provisions contained in the Regulations as may from time to time be adopted by
the Landlord pursuant to Clause 9.1 hereof.
2.13 (Deeming acts and defaults) To be responsible to the Landlord for any
breach non-observance non-performance of the terms conditions agreements or
stipulations by and the acts neglects omissions and defaults of all employees
agents contractors invitees customers or visitors of the Tenant as if they were
the breach non-observance non-performance of the terms conditions agreements or
stipulations by and the acts neglects omissions and defaults of the Tenant
itself.
2.14 (Delivery of Premises and handover) To deliver to the Landlord the
Fixtures and Fittings and the Premises together with all fixtures fittings and
additions therein and thereto at the expiration or sooner determination of this
tenancy in good clean and tenantable repair and condition in accordance with the
stipulations herein contained and the Tenant shall not be entitled to claim any
compensation or damages from the Landlord in respect of any fixtures fittings or
additions made by the Tenant to the Premises PROVIDED THAT all personal property
fixtures and fittings and additions therein shall if so required by the Landlord
be removed by and at the expense of the Tenant at the expiration or sooner
determination of this tenancy and in such event the Tenant shall make good in a
proper and workmanlike manner to the satisfaction of the Landlord all damage
caused by such removal AND thereupon to surrender
<PAGE>
to the landlord all keys giving access to all parts of the Premises held by the
Tenant and to permit the Landlord to remove at the Tenant's expense all
lettering and characters in respect of the Tenant from the directory boards and
from all the doors walls or windows of the Premises and to make good any damage
caused by such removal AND that if there are articles things fixtures or
fittings remained or left in or at the Premises upon the expiration or sooner
determination of this tenancy, the Landlord shall be entitled (but not obliged
to) to dispose of or deal with the same at the expense of the Tenant without
further notice to the Tenant and shall not be accountable to the Tenant or any
other persons for any loss or damage in respect of such disposal or any other
treatment thereof.
2.15 (Repair of electrical installations piping and ducting) To repair and
replace any electrical installation wiring ducting or piping installed by the
Tenant if the same becomes dangerous or unsafe or if so reasonably required by
the Landlord or by the relevant utilities company and the Tenant shall use the
Landlord's nominated contractor for the fire-service, air-conditioning and the
wiring (from the meter room to the Tenant's main switch) works and shall only
use a contractor approved by the Landlord in writing for the internal wiring
work within the Premises (such approval not to be unreasonably withheld). The
Tenant shall permit the Landlord or its agents to test the fire-service,
air-conditioning and wiring ducting or piping installed by the Tenant in the
Premises at any reasonable time upon request being made.
2.16 (Cleaning and cleaning contractors) To keep the Premises including where
the Tenant occupies the entire floor(s) the lift lobbies on the floor(s) of the
Building occupied by the Tenant at all times in a clean and sanitary state and
condition and for the better observance hereof the Tenant shall only employ as
cleaners of the Premises such persons or firms as may be nominated or approved
by the Landlord (such approval shall not be unreasonably withheld). Such
cleaners shall be employed at the expense of the Tenant.
2.17 (Cleaning of drains) To pay to the Landlord on demand all costs incurred
by the Landlord in clearing repairing or replacing any of the drains pipes or
sanitary or plumbing apparatus choked or stopped up owing to the careless or
improper use or neglect by the Tenant or any employee agent contractor invitee
guest or visitor of the Tenant and to indemnify the Landlord against any cost
claim or damage caused thereby or arising therefrom.
2.18 (Protection from bad weather) To take all reasonable precautions to
protect the interior of the Premises against damage by storm heavy rainfall
heavy snowfall or the like and in particular to ensure that all exterior doors
and windows are securely fastened upon the threat of such adverse weather
conditions.
2.19 (Outside windows and doors) To keep all outside windows and doors closed
and in the event of a breach of this Clause the Landlord shall have the right to
send a representative to close any open door or doors or window or windows
should the Tenant fail to forthwith comply with the Landlord's request to close
the same.
2.20 (Service entrances and lifts) To load and unload goods only at such times
and through such service entrances and by such service lifts as shall be
designated by the Landlord for this purpose from time to time.
<PAGE>
2.21 (Refuse and garbage removal) To be responsible for the removal of garbage
and refuse from the Premises and to dispose of such garbage and refuse only in
those areas in the Building as shall be designated by the Landlord from time to
time. In the event that the Tenant requires collection service for garbage and
refuse from the Premises to such designated areas and the Landlord provides such
service, the same shall be used by the Tenant to the exclusion of any other
similar service and the use of such service provided by the Landlord shall be at
the sole cost of the Tenant.
2.22 (Conducting of business) To conduct the business of the Tenant so as not
to prejudice the goodwill and reputation of the Building as a first class office
building.
2.23 (Indemnity against breach) To keep the Landlord fully indemnified from and
against all actions claims losses damages expenses and legal costs which the
Landlord may suffer or incur as a result of or arising from any of the Tenant's
breach non-observance or non-performance of any term condition agreement or
stipulation contained in this Tenancy Agreement or out of any works carried out
by the Tenant at any time during the Term to the Premises or out of anything
affixed and/or installed by the Tenant now or during the Term attached to or
projecting from the Premises or arising from any act neglect or default of the
Tenant.
Clause 3 -Landlord's Obligations
The Landlord agrees with the Tenant as follows:
3.1 (Quiet enjoyment) Subject to the Tenant paying the Rent, the Management
Fees and other amounts hereby agreed to be paid at the time and in the manner
herein provided for payment of the same and observing and performing the terms
conditions agreements and stipulations contained in this Tenancy Agreement and
to be observed and performed by the Tenant to permit the Tenant to peacefully
hold and enjoy the Premises during the Term without any interruption by the
Landlord or any person lawfully claiming through the Landlord provided that the
Tenant acknowledges that the Landlord or the Property Manager shall have the
right to carry out renovation alteration and/or repair works within, outside
and/or above the Building and that fitting-out works may be carried out by the
Landlord and/or other tenants of the Building. The Landlord shall use its best
endeavours to minimise any disturbance caused by all such fit-out works to the
Tenant.
3.2 (Land Use Fee) To pay the Land Use Fee payable in respect of the land upon
which the Building is erected and the Building Property Tax payable in respect
of the Building.
3.3 (Roof and main structure) To keep the main structural parts of the
Building in a proper state of repair.
3.4 (Decoration) To carry out all necessary decoration to the common areas of
the Building as and when the Landlord shall decide the same is necessary.
<PAGE>
3.5 (Cleaning) To keep the common areas and toilets and other parts of the
Building for common use clean and in proper condition.
3.6 (Common Facilities) To maintain any lifts escalators fire and security
services equipment air-conditioning plant and other common service facilities of
the Building in proper working order.
3.7 (Directory boards) To supply standard directory boards and to allot space
thereon for the Tenant's name to be affixed thereon in such uniform lettering or
characters as shall be designated by the Landlord.
3.8 (Air-conditioning) To provide air-conditioning services to the Premises
daily from Monday to Friday from 7:30 a.m. until 8:00 p.m. (other than the
public holidays) or within such hours as shall from time to time be specified by
the Landlord. No air-conditioning services will be provided on Saturday, Sunday
and public holidays. However, the Landlord will provide extra fresh air
[Chinese Technical Term] to the Premises free of charge from 10:00 a.m. to 12:00
noon for Saturday only in June, July and August every year of the Term. If the
Tenant shall require air-conditioning services outside the hours specified by
the Landlord as aforesaid the Landlord may provide the same to the Tenant on
receiving reasonable advance notice of the Tenant's requirement. The charges for
such additional air-conditioning shall be determined by the Landlord and
notified to the Tenant from time to time and the Tenant shall forthwith pay the
charges thereof on receipt of the demand note therefor.
Clause 4 - Restrictions and Prohibitions
The Tenant hereby agrees with the Landlord as follows:
4.1 (Installation and alteration) Not without the prior written consent of the
Landlord (such consent not to be unreasonably withheld) to erect install or
alter any fixtures partitioning or other erection or installation in the
Premises or any part thereof or to make or permit or suffer to be made any
installations in or additions to the electrical wiring piping ducting and any
other installations or to install or permit or suffer to be installed any
equipment apparatus or machinery which imposes a weight on any part of the
flooring in excess of that for which it is designed or which requires any
additional electrical wiring piping or ducting or which consumes electricity not
metered through the Tenant's separate meter. The Landlord shall be entitled to
prescribe the maximum weight and permitted location of safes and other heavy
equipment and to require that the same stand on supports of such dimensions and
material to distribute the weight as the Landlord may deem necessary and that in
carrying out any approved work hereunder the Tenant and its employees agents
contractors and workmen shall cooperate fully with the Landlord and all the
employees agents contractors and workmen of the Landlord and with other tenants
or contractors carrying out any work in the Building. The Tenant its employees
agents contractors and workmen shall obey and comply with all instructions and
directions which may be given by the Landlord or its representative in
connection with the carrying out of such work.
4.2 (Criteria for commencing business) Not to use occupy the Premises to
commence business or operation (whether temporarily or otherwise) unless and
until (i) having obtained all
<PAGE>
necessary unconditional completion/approval certificate(s) duly issued by the
competent authorities in respect of all works and installation to the Premises
which shall be legally required for commencing business or operation at or in
the Premises; and (ii) having deposited with the Landlord at all times during
the Term copies of the relevant valid completion/approval certificate(s)
therefor; failing which the Landlord may at its discretion refuse to provide the
necessary facilities and services to the Premises including the electricity
supply and air-conditioning facility.
4.3 (Signs) Not to affix or display or permit or suffer to be affixed or
displayed within or outside the Premises any signboard sign decoration
advertising matter or other device whether illuminated or not which may be
visible from outside the Premises and the Landlord shall have the right to
remove the same at the cost and expense of the Tenant Provided that:
(i) the Tenant shall be entitled to have its name displayed in English and
Chinese in uniform lettering and/or characters designated by the Landlord
on the directory boards, such lettering and characters and any additions or
alterations thereto will be placed thereon by the Landlord at the Tenant's
expense; and
(ii) the Tenant shall be entitled at its own expense to have its name affixed in
lettering and/or characters of dimensions approved by the Landlord on the
Tenant's main entrance door.
Save as provided in (i) and (ii) above, the Tenant shall not do or permit or
suffer any act which may alter or otherwise adversely affect the appearance of
the Premises or the Building.
4.4 (User) Not to use or permit or suffer the Premises to be used for any
purpose other than as an office under the name of the Tenant only.
4.5 (Illegal or immoral use) Not to use or permit or suffer the Premises to be
used for any illegal immoral or improper purpose.
4.6 (No touting) Not to permit any touting or soliciting for business or the
distributing of any pamphlets notice or advertising matter outside the Premises
or anywhere within or near the vicinity of the Building by any of the Tenant's
employees or agents.
4.7 (Auction and Exhibition) Not to hold or permit or suffer to be held in the
Premises any exhibition auction or similar sale of things or properties of any
kind.
4.8 (Sleeping or domestic use) Not to use or permit or suffer the Premises or
any part thereof to be used as sleeping quarters.
4.9 (Manufacture or storage of goods) Not to use or permit or suffer the
Premises to be used for the production manufacture or working of goods or
merchandise nor for the storage of goods and merchandise other than samples and
exhibits in small quantities reasonably required in connection with the Tenant's
business carried on therein.
<PAGE>
4.10 (Combustible or dangerous goods) Not to keep or store or permit or suffer
to be kept or stored in the Premises any arms ammunition gun-powder salt-petre
kerosene or other explosive or combustible substance or hazardous or unlawful
goods and not at any time during the Term to allow the Premises or any part
thereof to be used in any way entailing a fine forfeiture or penalty against the
Landlord under any laws for the time being in force in the People's Republic of
China.
4.11 (Obstruction to Passages) Not to encumber or obstruct or permit or suffer
to be encumbered or obstructed with any boxes packaging rubbish or other
articles or obstruction of any kind or nature any of the entrances exits
staircases landing passages escalators lift lobbies or other parts of the
Building in common use and the Landlord shall be entitled without notice and at
the Tenant's expense to remove and dispose of any such boxes packaging rubbish
or other articles or obstruction as it sees fit without incurring any liability
therefor.
4.12 (Articles in common area) Not to lay install affix or attach any wiring
cables or other articles or things at in or upon any of the entrances exits
staircases landings passages lobbies or other parts of the Building in common
use without having obtained the Landlord's prior written consent.
4.13 (Sub-letting assigning) Not to assign underlet or otherwise part with the
possession of or transfer the Premises or any part thereof or any interests
therein nor permit or suffer any arrangement or transaction whereby any person
who is not a party to the Tenancy Agreement obtains the use possession
occupation or enjoyment of the Premises or any part thereof irrespective of
whether any rental or other consideration is give therefor. For the avoidance of
doubts, it is expressly agreed by the Tenant that this Tenancy Agreement shall
be personal to the Tenant.
4.14 (Breach of insurance policy) Not to do or permit or suffer to be done any
act deed matter or thing whatsoever whereby the insurance policies on the
Building and/or the Premises against loss or damage by fire and/or other
insurable perils and/or claims by third parties for the time being in force may
become void or voidable or whereby the rate of premium or premiums thereon may
be increased Provided that if as the result of any act deed matter or thing done
permitted or suffered to be done by the Tenant the rate of premium on any such
policy of insurance shall be increased the Landlord shall be entitled without
prejudice to any other remedy hereunder to recover from the Tenant the amount of
any such increase.
4.15 (Air-conditioning) Not to install air-conditioning facilities in addition
to such facilities as are provided by the Landlord.
4.16 (Parking) Not to park in obstruct or otherwise use nor permit any employee
agent customer invitee or visitor of the Tenant to park in obstruct or otherwise
use those areas of the Building allocated to the parking or movement of or
access for vehicles or designated as loading/unloading areas otherwise than in
accordance with the Regulations made by the Landlord pursuant to Clause 9
hereof.
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4.17 (Use of building name) Not without the prior written consent of the
Landlord to use or permit to be used the name/logo or any part of the name/logo
of the Landlord or of the Building or any picture representation or likeness of
the whole or any part of such name/logo or of the Building or of the Premises in
connection with the business or operations of the Tenant or for any purpose
whatsoever other than to indicate the address and place of business of the
Tenant only.
4.18 (Injury to walls and ceiling etc.) Not without the prior written consent of
the Landlord to cut maim injure drill nail or screw into mark or deface or
permit or suffer to be cut maimed injured drilled into marked or defaced any
doors windows walls beams structural members or any part of the fabric of the
Premises or any of the plumbing or sanitary or air-conditioning apparatus or
installations therein, nor without such consent of the Landlord to do any other
thing which may damage or penetrate the existing floor screed or slab.
4.19 (Damage to common areas) Not to damage injure or deface any part of the
common areas of the Building including without limitation the fabric decorative
features the stairs lifts escalators any trees plants or shrubs therein or
thereabout.
4.20 (Nuisance or annoyance) Not to do or permit or suffer to be done any act or
thing which may be or become a nuisance or annoyance to the Landlord or to the
tenants or occupiers of other premises in the Building.
4.21 (Noise) Not to cause produce or permit or suffer to be produced at any time
in the Premises any disturbing or irritating noise or any music sound or noise
(including sound produced by broadcasting or any apparatus or equipment capable
of producing reproducing receiving or recording sound) which may be audible
outside the Premises.
4.22 (Toilet facilities) Not to use or permit or suffer to be used the toilet
facilities provided by the Landlord in the Premises or in the common areas of
the Building for any purpose other than that for which they are intended and not
to throw or permit or suffer to be thrown therein any substance or object
incompatible with their intended use and the Tenant shall pay to the Landlord on
demand the whole expense of any breakage blockage or damage resulting from a
violation of this Clause.
4.23 (Animals pets and infestation) Not to keep or permit or suffer to be kept
any animals or pets inside the Premises and at the Tenant's expense to take all
such steps and precautions as shall be required by the Landlord to prevent the
Premises or any part thereof from becoming infested by pests or vermin.
4.24 (Preparation of food and prevention of odours) Not to cook or prepare or
permit or suffer to be cooked or prepared any food in the Premises or to cause
or permit any offensive or unusual odours to be produced upon or emanated from
the Premises.
4.25 (Aerials) Not to erect any aerial on the roof or walls of the Building or
on the ceiling or walls of the Premises and not to interfere with remove
dismantle or alter those common aerials (if any) provided by the Landlord.
<PAGE>
Clause 5 - Exclusions
Unless caused through the negligence of the Landlord its employees or agents,
the Landlord shall not be liable to the Tenant occupier or any other person
whomsoever:
5.1 (Lift escalators air-conditioning etc.) In respect of any injury loss
damage or death to person or property sustained by the Tenant occupier or any
such other person caused by or through or in any way owing to any defect in or
breakdown of any of the lifts escalators fire and security services equipment
air-conditioning plant telecommunication services or any other facilities of and
in the Premises or the Building; or
5.2 (Electricity/water supply) In respect of any injury loss damage or death to
person or property sustained by the Tenant occupier or any such other person
caused by or through or in any way owing to any failure malfunction explosion or
suspension of the electricity or water supply to the Building or the Premises;
or
5.3 (Fire and overflow of water and vermin) In respect of any injury loss
damage or death to person or property sustained by the Tenant occupier or any
such other person caused by or through or in any way owing to fire or the escape
of fumes smoke odours or any substance or thing or the overflow or leakage of
water from anywhere within the Building or the influx of rain water or storm
water into the Building or the Premises or the activity of rats or other vermin
in the Building; or
5.4 (Security) For the security or safekeeping of the Premises or any persons
or contents therein and in particular but without prejudice to the generality of
the foregoing the provision (if any) by the Landlord or the Property Manager of
watchmen and caretakers or any mechanical or electrical systems of alarm of
whatever nature shall not create any obligation on the part of the Landlord or
the Property Manager as to the security of the Premises or any contents therein
and the responsibility for the safety of the Premises and the contents thereof
shall at all times rest with the Tenant; or
5.5 (Non-enforcement of the Regulations) In respect of any injury loss damage
or death however caused by or arising from any non-enforcement of the
Regulations under Clause 9 or non-observance thereof by any party; or
Nor shall the Rent or the Management Fees payable by the Tenant hereunder or any
part thereof be abated or cease to be payable on account of any of the foregoing
circumstances.
Clause 6 - Abatement of Rent and Management Fees
If the Premises or any part thereof shall be destroyed or so damaged by fire bad
weather Act of God force majeure or other cause not attributable directly or
indirectly to any act or default of the Tenant as to render the Premises unfit
for use and occupation the Rent hereby agreed to be paid or a part thereof
proportionate to the nature and extent of the damage sustained shall cease to be
payable until the Premises shall have been restored or reinstated Provided
Always that the
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Landlord shall be under no obligation to repair or reinstate the Premises if in
its opinion it is not reasonably economical or practicable so to do and Provided
Further that if the whole or substantially the whole of the Premises which have
been destroyed or rendered unfit for use and occupation shall not have: been
repaired and reinstated within six months of the occurrence of the destruction
or damage either party hereto shall be entitled at any time before the same are
so repaired and reinstated to terminate this Agreement by notice in writing to
the other but without prejudice to the rights and remedies of either party
against the other in respect of any antecedent claim or breach of the agreements
terms and conditions herein contained or of the Landlord in respect of the Rent
the Management Fees and other charges payable hereunder prior to the coming into
effect of the cessation.
Clause 7 - Default
It is hereby further expressly agreed and declared as follows:
7.1 (Default) Entirely without prejudice to the provisions of Clause 8.1, if
(i) the Rent, the Management Fees and/or other amounts payable by the Tenant
under this Tenancy Agreement or any part thereof shall be unpaid for fourteen
(14) days after the same shall have become payable (whether the Tenant has been
demanded to pay or not); or (ii) any breach non- observanc or non-performance by
the Tenant of any of the terms agreements stipulations or conditions hereof; or
(iii) any of the assets of the Tenant has been seized or distrainted by the
People's Court or any competent authority; or (iv) the Tenant shall become
bankrupt or being a corporation shall go into liquidation; or (v) any petition
shall be filed for the bankruptcy or winding up of the Tenant; or (vi) the
Tenant shall otherwise become insolvent or make any composition or arrangement
with its creditors or shall suffer any execution to be levied on the Premises
(each such case a "Default"), THEN the Landlord may EITHER disconnect all
electricity, air-conditioning, water, telephone, internet, other utility
services and/or supplies to the Premises provided that a three (3) days' prior
notice has been given to the Tenant of the Landlord's intention so to do OR
exercise all of the following rights (the "Remedial Rights") if such Default(s)
has/have not been remedied within seven (7) days after a written notice has been
served by the Landlord to the Tenant:
(i) to enter or re-enter on the Premises or any part thereof in the name of
the whole;
(ii) to terminate this Tenancy Agreement absolutely but without prejudice to
any right of action of the Landlord in respect of any outstanding breach
or non-observance or non-performance by the Tenant of any of the
agreements stipulations and conditions herein contained;
(iii) to forfeit the Deposit and other deposits paid by the Tenant without
prejudice to the Landlord's right of deduction in accordance with Clause
8 and claim for further compensation; and
(iv) to do all lawful things and/or to take all lawful actions which the
Landlord considers necessary or desirable to remedy the Default(s).
<PAGE>
All relevant costs and expenses incurred by the Landlord in connection with the
disconnection and the subsequent re-connection of the electricity
air-conditioning, water, telephone, internet, other utility services and/or
supplies to the Premises shall be paid by the Tenant and shall be recoverable
from the Tenant as a debt or be deductible by the Landlord from the Deposit paid
by the Tenant in accordance with Clause 8 hereof.
7.2 (Exercise of right) A written notice served by the Landlord on the Tenant
in manner hereinafter mentioned to the effect that the Landlord thereby
exercises the power of re-entry and determination of the Tenancy Agreement
herein contained shall be a full and sufficient exercise of such power without
physical entry on the part of the Landlord. Upon dispatch of the written notice
of re-entry, the Premises shall be deemed to have been repossessed by the
Landlord and the Tenant shall be deemed evicted. Thereafter, the Landlord shall
be entitled to dispose of the Premises and any items or chattels left on the
Premises in such manner as it wishes and it shall not incur any liability to the
Tenant therefor.
7.3 (Acceptance of Rent and Management Fees) Acceptance of the Rent and/or
the Management Fees and/or other amounts by the Landlord shall not be deemed to
operate as a waiver by the Landlord of any right to proceed against the Tenant
in respect of any breach non-observance or non-performance by the Tenant of any
of the agreements stipulations and conditions herein contained and on the
Tenant's part to be observed and performed.
7.4 (Payment Order) The Rent payable in respect of the Premises shall be and
be deemed to be in arrears if not paid in advance at the times and in the manner
hereinbefore provided for payment thereof. In such a case, the Landlord may
apply for Payment Order issued by the People's Court in accordance with the
Article 189 of the "PRC Civil Procedure Law" and all costs and expenses thus
incurred shall be borne by the Tenant.
7.5 (Interest) Without prejudice to the Landlord's other rights and remedies
on such default, if the Rent, the Management Fees or any other charges payable
by the Tenant under this Tenancy Agreement or any part thereof shall not be paid
in the manner and at the time specified in Clause 1 hereof, then interest shall
be payable by the Tenant at the rate of 0.1% per day calculated on daily basis
from the due date up to the date of actual payment (both inclusive).
Clause 8 - Deposit
8.1 (The Deposit) The Tenant shall on the signing hereof deposit with the
Landlord the Deposit in Renminbi specified in Part 5 of the Schedule to this
Tenancy Agreement to secure the due observance and performance by the Tenant of
the terms conditions agreements and stipulations contained in this Tenancy
Agreement and to be observed and performed by the Tenant. The Deposit shall be
retained by the Landlord throughout the Term free of any interest and in the
event of any breach or non-observance or non-performance by the Tenant of any of
the agreements stipulations or conditions aforesaid the Landlord shall be
entitled, by exercising its Remedial Rights provided in this Tenancy Agreement,
to terminate this Agreement, forfeit the Deposit and claim further compensation
for the costs expenses loss or damage thus incurred. Notwithstanding the
foregoing, the Landlord may in any such event at its option deduct immediately
after the occurrence of the breach non-observance or non-performance of any
<PAGE>
agreement stipulation or condition of this Tenancy Agreement from the Deposit
the amount of any monetary loss incurred by the Landlord in consequence of such
breach non-observance or non-performance with prior notice to the Tenant in
which event the Tenant shall as a condition precedent to the continuation of the
tenancy deposit with the Landlord the amount so deducted within 7 days after
receiving the written notice of the Landlord demanding the same and if the
Tenant shall fail so to do the Landlord shall forthwith be entitled to exercise
all of its Remedial Rights.
8.2 (Repayment of the Deposit) Subject as aforesaid the Deposit shall be
refunded to the Tenant by the Landlord without interest within thirty (30) days
after (a) the expiration of this Tenancy Agreement and the delivery of vacant
possession to the Landlord in accordance with Clause 2.14 above or (b) the
settlement of the last outstanding claim by the Landlord against the Tenant in
respect of any breach non-observance or non-performance of any of the agreements
stipulations or conditions herein contained and on the part of the Tenant to be
observed and performed or (c) the relevant telephone telecommunication and
electricity authorities have cleared the Tenant's telephone telecommunication
and electricity accounts; whichever is the latest. The Deposit shall be refunded
to the Tenant in Reminbi without interest in the same amount as it was paid to
the Landlord, subject, however, to the Landlord's right to make deduction,
withholding or set off according to the terms of this Tenancy Agreement.
Clause 9 - Regulations
9.1 (Introduction of Regulations) The Landlord reserves the right from time to
time and by notice in writing to the Tenant to make and introduce and
subsequently amend adopt or abolish if necessary such rules and regulations
("Regulations") as it may consider necessary for the control of use of parking
spaces, fitting-out and the access operation management and maintenance of the
Building and/or the Development as a first class development and for the
compliance of the relevant laws regulations or requirements imposed by the
competent authorities.
9.2 (Conflict) Such Regulations shall be supplementary to the terms and
conditions contained in this Tenancy Agreement and shall not in any way derogate
from such terms and conditions. In the event of conflict between such
Regulations and the terms and conditions of this Tenancy Agreement, the terms
and conditions of this Tenancy Agreement shall prevail.
Clause 10 - Interpretation and Miscellaneous
10.1 (Headings and indices) The headings and indices (if any) are intended for
guidance only and do not form part of this Tenancy Agreement nor shall any of
the provisions of this Tenancy Agreement be construed or interpreted by
reference thereto or in any way affected or limited thereby.
10.2 (Condonation not a waiver) No condoning excusing or overlooking by the
Landlord of any default breach or non-observance or non-performance by the
Tenant at any time or from time to time of any of the Tenant's obligations
herein contained shall operate as a waiver of the Landlord's rights hereunder in
respect of any continuing or subsequent default breach or non-observance or
non-performance or so as to defeat or affect in any way the rights and remedies
of
<PAGE>
the Landlord hereunder in respect of any such continuing or subsequent default
or breach and no waiver by the Landlord shall be inferred from or implied by
anything done or omitted by the landlord unless expressed in writing and signed
by the Landlord. Any consent given by the Landlord shall operate as a consent
only for the particular matter to which it relates and in no way shall it be
considered as a waiver or release of any of the provisions hereof nor shall it
be construed as dispensing with the necessity of obtaining the specific written
consent of the Landlord in the future, unless expressly so provided.
10.3 (Landlord's rights regarding common areas and common facilities) The
Landlord reserves the right to remove cancel relocate or otherwise change or
carry out any alteration or addition or other works to the common areas and
common facilities of the Building and such other part or parts of the Building
(other than the Premises) and to restrict the access or rights of way thereof
from time to time and in such manner as the Landlord may in its absolute
discretion deem fit without the same constituting an actual or constructive
eviction of the Tenant and without incurring any liability whatsoever to the
Tenant therefor.
10.4 (Service of notices) Any notice required to be served hereunder shall be
in writing and shall be sufficiently served on the Tenant if addressed to the
Tenant and sent by prepaid post to or delivered by hand at the Premises or the
Tenant's last known place of business or residence in Beijing China and shall be
sufficiently served on the Landlord if addressed to the Landlord and sent by
prepaid post to or delivered by hand at the address given in this Tenancy
Agreement or any other address which the Landlord may notify to the Tenant from
time to time.
10.5 (Exclusion of warranties) This Tenancy Agreement sets out the full
agreement reached between the parties and no other representations or warranties
have been made or given relating to the Landlord or the Tenant or the Building
or the Premises and if any such representation or warranty has been made given
or implied the same is hereby waived.
10.6 (Name of Building) The Landlord reserves the right to name the Building
with any such name or style as it in its sole discretion may determine and at
any time and from time to time to change alter substitute or abandon any such
name without compensation to the Tenant Provided that the Landlord shall give
the Tenant and the postal and other relevant government authorities not less
than three months notice of its intention so to do.
10.7 (Business License) Prior to signing this Tenancy Agreement, the Tenant
shall produce to the Landlord for inspection the business licence or
registration certificate issued by the Government of the People's Republic of
China and the relevant Power of Attorney and in case where the Tenant is a
corporation, the by-laws or the memorandum and articles of association of the
Tenant and a certified copy of the board minutes of the Tenant authorising the
Tenant's representative to execute this Tenancy Agreement. Without prejudice to
the foregoing, the Tenant represents and warrants to the Landlord that it has
all requisite power and authority to execute and deliver this Tenancy Agreement
and to perform its obligations hereunder, and that the person signing this
Tenancy Agreement on behalf of the Tenant has been duly authorized to do so by
all necessary corporate or other action of the Tenant.
<PAGE>
10.8 (Condition of Premises) The Premises shall be delivered to the Tenant on
"as is" basis as of the date on which possession thereof shall be delivered to
the Tenant by the Landlord. The Tenant shall accept the Premises so delivered as
tenantable and in accordance with this Tenancy Agreement.
10.9 (Costs and Expenses) Unless the laws and regulations of the People's
Republic of China provide to the contrary in which event such contrary
provisions shall apply, all expenses including stamp duty and registration fees
for and incidental to the creation of this Tenancy Agreement shall be borne
equally by the Landlord and the Tenant. Each party shall bear its own legal
costs, if any.
10.10 (Governing Law and Jurisdiction) This Tenancy Agreement shall be governed
by and construed in accordance with the laws of the People's Republic of China.
Should any dispute arise under this Tenancy Agreement and resolution thereof
cannot be reached through consultation between the Landlord and the Tenant, then
either party may submit the dispute to a competent People's Court in Beijing
Municipality.
10.11 (Execution and Language) This Tenancy Agreement shall be executed both in
Chinese and English, but shall be registered in its Chinese version in
accordance with the laws of P. R. China. The Landlord and the Tenant jointly
declare that the Chinese and English versions of this Tenancy Agreement shall
have same legal effect.
<PAGE>
APPENDIX TWO ABOVE REFERRED TO - SPECIAL CONDITIONS
Unless otherwise expressly agreed, if there is any inconsistency between the
terms of any part of this Tenancy Agreement with those of the Special
Conditions, the terms of the Special Conditions shall prevail.
1. (Fitting-out Period before commencement of Term) Subject to the Tenant (i)
signing this Tenancy Agreement; (ii) depositing with the Landlord the Deposit
and Advance Payment specified in Part 5 of the Schedule to this Tenancy
Agreement; and (iii) obtaining the prior written approval of the fitting-out
plans by the Landlord or the Property Manager and the relevant government
authorities, the Landlord agrees that the Tenant may occupy the Premises from
November 1, 2002 until the date before the Commencement Date ("Fitting-out
Period") for the sole purpose of carrying out the necessary building works as
well as the fitting out decoration and other works in the Premises. During the
Fitting-out Period, the Tenant shall occupy the Premises as a licensee only and
shall have no right to occupy the Premises to the exclusion of the Landlord or
the Landlord's contractors, employees, representative, invitees or agents.
Accordingly, during the Fitting-out Period, the Tenant shall:
(i) use the Premises for fitting-out purpose only and shall not be entitled to
operate or carry on any business in whatsoever manner in the Premises;
(ii) vacate the Premises upon being so required by the Landlord if the Tenant,
its contractors, agents, employees or representative shall behave or if
the Premises shall be used in such manner as may be inconsistent with the
sole purpose of fitting-out of the Premises;
(iii) take out at its own cost with the interests of the Landlord being noted in
the relevant policy(ies) a contractors' all risks insurance policy
incorporating thereinto third party liability insurance and such other
insurance policies as may be necessary; and
(iv) the Tenant shall keep the Landlord fully indemnified of and from all
losses damages claims actions and demands whatsoever sustained by the
Landlord and/or made against the Landlord by any person arising directly
or indirectly out of any act deed matter or thing done or omitted to be
done by the Tenant as a result of the occupation of the Premises by the
Tenant.
Notwithstanding anything contained herein, if the Fitting-out Works have been
completed prior to the end of the Fitting-out Period, the Tenant may, subject to
its continuing obligation under Clause 2.3 and Clause 4.2, commence business or
operation at the premises after (i) having obtained all necessary
completion/approval certificate(s) duly issued by the competent authorities in
respect of the Fitting-out Works which shall be legally required for commencing
business or operation at or in the Premises; (ii) having deposited with the
Landlord the relevant valid completion/approval certificate(s) therefor; and
(iii) shall comply with all the terms and conditions of this Tenancy Agreement
and pay the Management Fees and other charges and
<PAGE>
outgoings payable hereunder as if it were the Tenant, save only for the
obligation to pay the Rent.
2. (Rent Free Period) Subject to the condition of the Tenant's due observance
and performance of the terms and conditions of this Tenancy Agreement, the
Landlord agrees to grant to the Tenant a Rent Free Period of 8 months
commencing from April 1, 2004 to May 31, 2004 (both days inclusive); and
commencing from March 1, 2005 to May 31, 2005 (both days inclusive); and
commencing from March 1, 2006 to May 31, 2006 (both days inclusive)
Provided however that during the Rent Free Period the Tenant shall at all times
observe and perform its obligations under this Tenancy Agreement and pay the
Management Fees and all other amounts payable by the Tenant pursuant to the
provisions herein (except the Rent).
3. (Option for Renewal) The Tenant shall have the option to renew this
tenancy for a further term of 2 years ("Option for Renewal") immediate after the
expiry of the Term, subject to the terms and conditions of this Tenancy
Agreement.
3.1 If the Tenant intends to exercise its Option for Renewal, the Tenant shall
not less than six (6) months before the expiration of the Term give to the
Landlord notice in writing of such intention, and if the Tenant shall have at
all times up to the expiration of the Term observed and performed its
obligations under this Tenancy Agreement then the Landlord will let and the
Tenant will take and Premises for the renewed term from the date immediately
following the expiry of the Term at the new monthly rent as defined and
determined in the manner as provided hereunder but otherwise, on the same terms
and conditions as this Tenancy Agreement save and except the provisions
regarding the Option for Renewal, the Rent Free Period and the Fitting-out
Period, if any. The parties shall execute a renewal tenancy agreement and the
Tenant will pay to the Landlord the required additional sum to make up the a new
deposit in order to restore the ratio of deposit to rent plus management fees as
set out in this Tenancy Agreement and if the Tenant shall not have exercised its
Option for Renewal as aforesaid then this Tenancy Agreement shall forthwith be
terminated al the expiration of the Term and the Tenant shall then forthwith
yield up vacant possession of the whole of the Premises in the manner as
provided hereinbefore.
3.2 The new monthly rent for the renewed term (exclusive of the Management
Fees (the "New Rent") shall be determined in the following manner:
(i) The Landlord and the Tenant shall through mutual negotiation agree upon
the New Rent which shall reflect the then prevailing market rent for
office space in Beijing in a similar and comparable position to the
Premises.
(ii) Where the Landlord and the Tenant shall fail to so agree within 3 months
of the Tenant exercising the option, a surveyor experienced in valuing
rent for office properties in Beijing and acceptable to both the Landlord
and the Tenant shall be appointed to determine the fair prevailing market
rent for the Premises with reference to office space in Beijing in a
similar and comparable position to the Premises. The surveyor shall act as
<PAGE>
an expert and not as an arbitrator. The surveyor shall determine the New
Rent in accordance with his own judgment and opinion as to the true
current market rental value of the Premises on the assumptions hereinafter
defined (the "Assumptions") but disregarding the disregarded matters (the
"Disregarded Matters").
(I) The "Assumptions" mean the following assumptions at the date upon
which the New Rent is determined:-
(a) that the Premises are fit for and fitted out and equipped for
immediate occupation and use, and that no work has been carried
out on the Premises by the Tenant or its predecessors in title
during the Term which has diminished the rental value of the
Premises, and if the Premises have been destroyed or damaged
they have been fully restored; and
(b) that the Premises are available to let by a willing landlord to
a willing tenant, as a whole, with vacant possession,for a term
equal to the renewed term; and
(c) that the covenants terms and conditions in this Agreement on
the part of the Tenant have been fully performed and observed.
(II) The "Disregarded Matters" mean:
(a) any effect on rent of the fact that the Tenant has been in
occupation of the Premises;
(b) any goodwill attached to the Premises by reason of the
business of the Tenant; and
(c) any increase in rental value of the Premises attributable to
the existence of any improvement to the Premises and carried
out with consent where required otherwise than in pursuance of
an obligation to the Landlord by the Tenant or its predecessors
in title during the Term, or during any period of occupation
prior thereto arising out of an agreement to grant such term.
(iii) The surveyor shall, unless the Landlord and the Tenant agree otherwise,
make the determination and give such notice in writing to the Landlord and
the Tenant before the expiry of the Term and such determination shall be
final and binding on the Landlord and the Tenant.
(iv) The Landlord and the Tenant shall bear the fees of the surveyor in equal
shares. If the Tenant does not accept the surveyor's determination
pursuant to this Clause, the Tenant shall in such event bear the fees of
the surveyor in full.
<PAGE>
4. (Use of Common Corridor) Subject to the Tenant (i) signing this Tenancy
Agreement; (ii) depositing with the Landlord the Deposit and Advance Payment
specified in Part 5 of the Schedule to this Tenancy Agreement; and
(iii)obtaining the prior written approval of the fitting-out plans by the
Landlord or the Property Manager and the relevant government authorities, the
Landlord agrees that the Tenant may at free of charge use the portion of the
common corridor on the 19th Floor of the Building (the "Corridor") as coloured
"yellow" on the plan(s) annexed hereto in Appendix III. The Landlord will sign a
separate license agreement with the tenant in the form provided by the Landlord
and agreed by both parties for the tenant's use of that portion of the Corridor.
The Tenant agrees to be responsible for all the responsibility and costs
incurred in the alternation use and reinstatement works of the Corridor,
included but not limited to the ceiling, walls, floor, doors etc of the
Corridor.
5. (Door to the Public Pantry) Subject to the Tenant (i) signing this Tenancy
Agreement; (ii) depositing with the Landlord the Deposit and Advance Payment
specified in Part 5 of the Schedule to this Tenancy Agreement; and (iii)
obtaining the prior written approval of the fitting-out plans by the Landlord or
the Property Manager and the relevant government authorities, the Landlord
agrees that the Tenant may at free of charge use the pantry on the 19th Floor of
the Building (the "Pantry") exclusively as coloured "blue" on the plan(s)
annexed hereto in Appendix III. The Landlord will sign a separate license
agreement with the tenant in the form provided by the Landlord and agreed by
both parties for the tenant's use of such Pantry. The Tenant agrees to be
responsible for all the responsibility and costs of all the repairs or
maintenance to the Pantry (included but not limited to any facility or equipment
etc of the Pantry) or incurred in the alternation change use and reinstatement
works of such Pantry and its structure facility or equipment.